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FIFTH
SECTION
CASE OF SLANKO v. UKRAINE
(Application
no. 6508/05)
JUDGMENT
STRASBOURG
15 July
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Slanko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Zdravka
Kalaydjieva,
Ganna
Yudkivska,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 22 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 6508/05) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Ms Elvira Ivanovna Slanko
(“the applicant”), on 9 February 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
12 December 2007 the Court decided to give notice of the application
to the Government. It also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1937 and lives in Feodosiya.
A. Proceedings against the Krymenergo company
instituted by the applicant in 1997
- On
10 June 1997 the applicant instituted civil proceedings in the
Feodosiya Court against the State-owned company Krymenergo seeking
compensation for pecuniary and non-pecuniary damage caused by
allegedly unlawful electricity cuts and inaccurate calculation of her
electricity charges.
- Between
January 1998 and March 1999 the applicant modified her claims on six
occasions.
- On
12 March 1998 the Feodosiya Prosecutor’s Office lodged a
counter-claim on behalf of Krymenergo seeking recovery of electricity
charges not paid by the applicant.
- On
5 January 1999 the applicant lodged with the same court a defamation
claim against Krymenergo.
- On
12 March 1999 the court joined that claim to the original
proceedings.
- On
17 March 1999 the court dismissed the applicant’s claims as
unsubstantiated and allowed the counter-claim, ordering the applicant
to pay 269 Ukrainian hryvnias (UAH)
to Krymenergo.
- On
2 June 1999 the Crimea Supreme Court quashed that judgment and
remitted the case to the first-instance court for fresh
consideration.
- According
to the Government, on 28 September 1999, the applicant requested the
court to suspend the proceedings. On the same day the request was
granted. The applicant denied that she had made such a request.
- On
5 December 2000 the proceedings were resumed.
- By
a procedural decision of 5 December 2000 the court ordered the
parties to check the payments already made for electricity and to
inform the court accordingly. According to the Government, the
applicant failed to comply with that decision. The applicant denied
that contention. On 28 February 2001 the court reiterated its
order and, by April 2001, the parties had submitted the information
concerning the payments.
- On
20 August 2001 the Feodosiya Court rejected the applicant’s
claims and ordered her to pay UAH 180.85
in debts.
- On
17 September 2001 the applicant appealed.
- On
18 January 2002 the applicant’s appeal was rejected for
failure to comply with procedural requirements. The applicant
disagreed and challenged the ruling of 18 January 2001 on appeal.
Between January 2002 and June 2005 her appeals were dealt with by the
court of first instance and on appeal. Ultimately, the appeals were
allowed and on 30 August 2005 the Court of Appeal quashed the
judgment of 20 August 2001 and remitted the case to the
first-instance court for fresh consideration.
- Meanwhile,
on 14 March 2003 the Council of Judges examined the applicant’s
complaint that the judge of the first-instance court dealing with her
case had taken too long to examine her appeals. The Council of Judges
allowed the applicant’s complaint and issued an official
reprimand against the judge.
- Following
reconsideration of the case, on 4 July 2006 the Feodosiya Court found
against the applicant and ordered her to pay UAH 259.73
in debts.
- On
12 September 2006 the Court of Appeal rejected the applicant’s
appeal as lodged out of time.
- On
26 April 2007 the Supreme Court upheld the ruling of 12 September
2006.
- Out
of thirty-six court hearings held in the course of the proceedings,
one was adjourned due to the applicant’s failure to appear, two
were adjourned due to the prosecutor’s failure to appear, four
were adjourned due to both parties’ failure to appear, seven
were adjourned due to Krymenergo’s representative’s
failure to appear, and three were adjourned due to the judge’s
absence. According to the Government, the parties submitted about
fifty procedural requests, asking the courts, in particular, to call
witnesses and to secure evidence. Some of the requests were allowed,
resulting in the postponement of the hearings.
B. Proceedings against the Krymenergo company and the
Feodosiya Electrical Transmission Network Company
- On
8 May 2002 the applicant instituted proceedings in the Feodosiya
Court against the Feodosiya Electrical Transmission Network Company
seeking compensation for damage to her reputation allegedly caused by
the latter.
- On
25 February 2003 the court joined Krymenergo as a respondent to the
proceedings.
- On
27 February 2003 the applicant lodged a similar claim against
Krymenergo with the same court. This was joined to the proceedings
concerning her initial claim for compensation.
- On
3 July 2003 the court rejected the applicant’s claims as
unsubstantiated.
- On
24 November 2003 the Crimea Court of Appeal upheld that judgment.
- On
13 May 2006 the Supreme Court rejected the applicant’s appeal
in cassation as unsubstantiated.
C. Proceedings against the judge dealing with the
applicant’s case
- In
February and April 2003 the applicant lodged two separate complaints
with the Feodosiya Court against the judge dealing with her dispute
with Krymenergo, alleging inactivity on the part of the judge with
regard to her appeal against the Feodosiya Court’s judgment of
20 August 2001.
The
applicant’s complaints were rejected as falling outside the
jurisdiction of the courts. In particular, Ukrainian law granted
judges and courts immunity from civil and administrative proceedings
against them for actions and decisions taken in their official
capacity.
THE LAW
I. COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
INSTITUTED IN JUNE 1997
- The
applicant complained about the length of the proceedings which she
had instituted against Krymenergo in 1997. She relied on Articles 6,
13 and 17 of the Convention.
- The
Court considers that the applicant’s complaint falls to be
examined under Article 6 § 1 of the Convention which, in so
far as relevant, reads as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
- The
Court finds that the complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
- The
Government submitted that a part of the proceedings was outside the
Court’s competence ratione temporis.
- The
Court observes that the impugned proceedings started in June 1997 and
ended in April 2007. The Convention entered into force in respect of
Ukraine on 11 September 1997. Thus, the period falling within
the Court’s competence ratione temporis lasted about
nine years and seven months.
2. Reasonableness of the length of the proceedings
- The
Government submitted that there had been no substantial delays
attributable to the domestic authorities. In their opinion, the
proceedings had been lengthy due to the complexity of the case and
the conduct of the parties, who had submitted about fifty procedural
requests. They further argued that the applicant had contributed to
the length of the proceedings by lodging her appeals out of time and
refusing to compare her calculation of the debts with that of the
respondent.
- The
applicant disagreed.
- The
Court considers that, although the applicant contributed to the
length of the proceedings by lodging requests and appeals, the
principal responsibility for the protracted length of the proceedings
rests with the domestic authorities. In particular, the Court notes
that the proceedings were blocked for more than three years during
which time the courts were dealing with the applicant’s appeal
against the judgment of 20 August 2001 (see paragraphs 16 and 17
above). Although a party to civil proceedings who uses the avenues
available to him or her under domestic law in order to protect his or
her interests must bear the consequences when it leads to delays, the
Court does not share the Government’s view that the applicant
was responsible for the delay in this case. Her appeal of 17
September 2001 was ultimately admitted and examined on the merits and
this fact demonstrates that the applicant had complied with the
relevant procedural requirements. Furthermore, the responsibility of
the courts for the delay was confirmed by the decision of the Council
of Judges of 14 March 2003 (see paragraph 18 above).
- The
Court also notes that the Government submitted no plausible argument
to demonstrate that the applicant’s case was factually or
legally complex. Thus, having regard to the substantial delay in the
proceedings between September 2001 and June 2005 and to the overall
duration of the proceedings of more than nine years, the Court
considers that in the instant case the length of the proceedings was
excessive and failed to meet the “reasonable time”
requirement.
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. OTHER COMPLAINTS
- The
applicant complained about the outcome of the proceedings against
Krymenergo and against the judge and that they had been unfair,
alleging that the courts had misinterpreted the law and had wrongly
established the facts. She also complained about the length of the
latter set of proceedings. The applicant invoked Articles 6, 13 and
17 of the Convention.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 1, 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 9,000 in respect of non-pecuniary damage.
- The
Government contested that claim.
- The
Court, making its assessment on an equitable basis, as required by
Article 41, awards the applicant EUR 2,400 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 227.02
for costs incurred in correspondence with the Court and UAH 284.39
for expenses incurred in the domestic proceedings.
- The
Government contested the claims concerning the expenses incurred in
the domestic proceedings and left the claim concerning the expenses
incurred before this Court to the Court’s discretion.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 35 for the cost
of correspondence with the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 6 § 1
of the Convention concerning the length of the proceedings instituted
by the applicant in June 1997 admissible and the remainder of the
application inadmissible;
2. Holds that there has been a violation of Article
6 § 1 of the Convention;
3. Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,435 (two
thousand four hundred and thirty-five euros), plus any tax that may
be chargeable to the applicant, in respect of non-pecuniary damage
and costs and expenses, to be converted into the national currency at
the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 15 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
